MISS K HUSBAND v DURHAM POLICE AUTHORITY [2002] UKEAT 1201_01_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1201_01_2012Case No Appeal No. EAT/1201/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS K HUSBANDAPPELLANTDURHAM POLICE AUTHORITYRESPONDENT
Before
Mr Justice Wall Mr B R Gibbs Dr D GrievesDate 20 December 2002
[1]APPEARANCES For the Appellant MR J FALKENSTEIN (Of Counsel) Instructed by: Gordon Brown Associates 51 Front Street Chester Le Street Co Durham DH3 3BH For the Respondent MR S SWEENEY (Of Counsel) The Solicitor Durham Constabulary Aykley Heads Durham DH1 5TT MR JUSTICE WALL This appeal raises in an acute form, and in unusual circumstances, the difficult question: when and in what circumstances is it appropriate for an Employment Tribunal to reverse a previous decision by means of a Review undertaken pursuant to paragraph 13(1)(e) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (the Regulations)?[2]The question arises in the context of an appeal by Miss K Husband (the Appellant) against the decision of the Employment Tribunal held at Newcastle upon Tyne on 3 July 2001, with Extended Reasons promulgated on 14 August 2001 (which we will call "the second decision"). By the second decision, the Tribunal reviewed and "varied" a previous decision which it had made on 20 November 2000 (which we will call "the first decision").[3]Before the Tribunal on 20 November 2000 was the preliminary hearing of the Appellant's application for unfair dismissal against Durham Police Authority (the Respondent). The purpose of the preliminary hearing was to determine the Appellant's entitlement to bring the proceedings. The need for such a hearing arose because the Appellant's form IT1 is dated 28 December 1999, and was received by the Tribunal on 11 January 2000. However, the Appellant gave the dates of her employment as being from 8 July 1991 to October 1995. In fact, the Appellant had been dismissed by the Respondent on 5 December 1995. Accordingly, the time for presentation of her Originating Application under Section 111(2) of the Employment Rights Act 1996 (ERA) expired on 4 March 1996. The Originating Application was, accordingly, a little under four years out of time.[4]ERA section 111(2) reads as follows: - (2) Subject to subsection (3), an employment Tribunal shall not consider a complaint under this section unless it is presented to the tribunal -(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. The first decision[5]In its Extended Reasons for the first decision, the Tribunal set out Section 111(2) of ERA, and directed itself by reference to the decision of the Court of Appeal in Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119 at 124 paragraph 35 as to the sort of factors which the Tribunal could properly take into account. Thus the Tribunal could consider: …… the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit[6]The Tribunal stated the facts quite shortly. The Appellant had been employed as a traffic warden by the Respondent as from 1991. She had obviously had a record of sickness which deteriorated in the early part of 1995. There were also incidents leading to her suspension in August and, without setting out in detail the various sick notes she submitted, it was clear to the Tribunal that she was absent either through sickness or suspension from 17 August 1995 until a disciplinary hearing in December 1995, when she was dismissed. The Appellant did not in fact attend that hearing, but she was given the reasons for her dismissal on in writing dated 5 December 1995. They were the following:-(1) your conduct has brought the constabulary's name into disrepute;(2) you failed to notify managers within the agreed timescales, regarding your sickness absence;(3) your periods of non-attendance at work are at an unacceptable level. The Appellant was informed of her right of appeal, and told that she would receive four weeks salary in lieu of notice.[7]The Tribunal found that by December 1995 it was common ground that the Appellant was suffering from a serious alcoholic-induced illness. This was described by her General Practitioner in a letter of 22 March 2000, which was before the Tribunal, in the following terms:- "I am the above mentioned lady's General Practitioner and have been for the past 14 years and have been treating her continuously since that time. As you requested I have reviewed her medical records for the time from the end of 4 December 1995 to January 2000. Briefly this lady has a very significant alcohol problem which became very evident shortly after she finished work in December 1995 and I referred her in February 1996 to a drug and alcohol community psychiatric nurse, but she was unable to help. Despite our best efforts this lady's alcohol problem continued for many years and she was in fact very unwell with this. There was no way she was capable of pursuing an application to an employment tribunal. She was killing herself with the alcohol. She developed an alcoholic neuropathy and encephalopathy and finally agreed to go in to hospital in May 1999. She was in hospital for 6 weeks but even on coming home she still had problems with mobility, ascites in her tummy which hampered her mobility, although she was much brighter and no longer under the influence of alcohol and had managed to stop. She is only now beginning to get out and about, travel again, do things again and think clearly. I would agree that this lady was not able to pursue a claim during these years and only now is able to see what happened to her in the past, think about it and construct a coherent and viable claim to any employment tribunal."[8]The Tribunal recorded that the Appellant's evidence to it in the following term:
"The (Appellant) told us in evidence that when she came out of hospital she was in fact bedridden for some period of time. It was only later in the year when she heard on a television programme that she might be able to claim in respect of her dismissal. At some point in November (she was not sure as to the date), she arranged to see a solicitor in the firm Richmond Anderson Goudie in Chester-le-Street who advised her that she might be able to bring proceedings for personal injury and unfair dismissal. The solicitor prepared an originating application on a form, which was signed by the applicant on 28 December 1999, but not presented to the Tribunal until 11 January 2000."
[9]The Tribunal expressed itself satisfied(1) that the Appellant's illness was a continuing one; and(2) that it did render it not reasonably practicable for her to present an Originating Application to the Tribunal until she had made some substantial improvement in her health after coming out of hospital in the summer of 1999. However, the Tribunal recognised that this was not the end of the matter, and that it had to consider the second element of Section 111(2) namely whether the complaint was presented within such further period as the Tribunal considered reasonable.[10]In this regard, the Tribunal referred to two cases. The first was an unreported decision of the Employment Appeal Tribunal, Havering London Borough Council v Turner (1066/99) a decision given on 28 November 1998. This had been cited to the Tribunal by Mr. Sweeney, counsel for the Respondent. The second was the decision of the Court of Appeal in Marley (UK) Ltd v Anderson [1996] IRLR 163.[11]Havering London Borough Council v Turner concerned a architect, who had presented his application for unfair dismissal to the Tribunal some two years after the termination of his employment. The Employment Tribunal had found that the applicant appeared to have no concept of time. On appeal, the EAT pointed out that: - Although most cases raised the single issue of reasonable practicability….the test was in fact twofold. The test of reasonable practicability and the test of whether it was reasonable were different tests and each raised different issues. Situations involving the lapse of two years were rare. The Tribunal also cited a further passage from the same case: - ….thereafter the test moves and a Tribunal is under a duty to consider whether it was reasonable and that involves a consideration of the position of the applicant employee and of the respondent employer. The Tribunal has an overwhelming discretion – and overriding discretion – when it is to determine the issue of reasonable practicability to consider the further period it considers reasonable[12]The Tribunal also set out the test laid down in Marley (UK) Ltd v Anderson in the judgment of Waite LJ. That involved the tribunal in answering, first, the question: Was it reasonably practicable to present a complaint before the end of three-month period? If the answer to that question was 'yes', there was no discretion to enlarge time. However, if the answer was 'no' the tribunal had to go on to answer the second question, namely: was the complaint presented within a reasonable period thereafter? The Tribunal also cited Harvey at para T209 to similar effect.[13]The Tribunal concluded its judgment in the first application by stating:- "Whilst (the Appellant's) memory, particularly as to dates, was far from clear, and whilst she was obviously experiencing great difficulty with regard to mobility, we were satisfied that once she thought she might have a claim in relation to her dismissal, she set matters in train by arranging to see a solicitor. Whilst the lapse of time is very long – more than four years from her actual dismissal, we accept the medical evidence that for the majority of this period, the applicant was in no state to consider this sort of matter. We also note that the Police Authority did not suggest that they would be facing any particular difficulties in responding to the claim at this time. 10. For these reasons we therefore determine that the application, not having been presented before the end of the three month period, and being satisfied that it was not reasonably practicable for the complaint to be presented within that period, the complaint was presented within such period as the Tribunal considers reasonable. The matter will therefore go forward to a hearing on the merits." Review or appeal? The jurisdiction to review[14]The Respondent sought a review of the Tribunal's decision. The jurisdiction to order a review is, as we have already stated, contained in paragraph 13 of Schedule 1 of the Regulations. Although only Regulation 13(1)(e) is relied upon here, we propose to set out the whole of Regulation 13(1) and Regulation 13(7): - Subject to the provisions of this rule, a tribunal shall have power, on the application of a party ….. to review any decision on the grounds that: -(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;(b) a party did not receive notice of the proceedings leading to the decision;(c) the decision was made in the absence of a party;(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or(e) the interests of justice require such a review. ….. (7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal. Review or Appeal: why apply for a Review in this case?[15]Mr. Sweeney, who has appeared for the Respondent throughout these proceedings, told us that the Respondent sought a Review of the decision (rather than seeking to challenge it by way of appeal) because of what he submitted was an important procedural shortcoming at the hearing. He says that in announcing its decision, the Tribunal expressly referred to the decisions of Marley (UK) Ltd v Anderson [1996] IRLR 163 and James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386. The latter had not been cited to it. . It also announced that it would not follow the decision of Havering LBC v Turner which had been cited to it by Mr. Sweeney.[16]Mr. Sweeney argued that the Tribunal had clearly considered privately and after the close of submissions authorities which had not been cited to it during the course of the hearing. The authorities in question had not been drawn to the parties' attention before the Tribunal reached its decision, and Mr. Sweeney had not had the opportunity to address the Tribunal on them. As a consequence, Mr. Sweeney argued, the Tribunal had both approached the matter and founded in its decision on the basis of an erroneous understanding of the correct legal test to be applied.[17]The grounds for seeking a review which Mr. Sweeney put forward also argued that the Tribunal had not dealt with the Appellant's ability to complete housing benefit forms and other state welfare forms, the complexity of which were (it was suggested) acknowledged to be substantially greater than that of completing a simple Originating Application claiming unfair dismissal.[18]Mr. Sweeney suggested that the decision of the Court of Appeal in James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386, although not referred to in the decision, was a decision which had influenced the Tribunal and on which Counsel had not been able to respond. In relation to Havering LBC v Turner , the matter was put in the following way:- "The Tribunal proceeded on the basis that the authority relied upon by Counsel, namely Havering LBC v Turner, differed from the cases referred to above and that the second part of the test was not to be approached as Counsel put it (in reliance on Turner) but by considering when after the expiry of three months the Applicant was able to present her claim and then whether she thereafter acted within a reasonable period of time. The tribunal acknowledged that it was not adopting the approach in Turner but preferred to approach the matter in the way outlined by relying on the cases of Marley and Tipper. However, had counsel had an opportunity of providing of addressing the tribunal on those cases he would have submitted that in fact they do not differ from the approach taken in Turner."[19]Criticism was also made in the application for the Review of the Tribunal's reference to Harvey at paragraph T209. The grounds submit that had Counsel known reference was going to be made to Harvey he would have referred the Tribunal to paragraph T210 – T213 further to support the contention that the test on the second limb was simply whether the time after the expiry of three month period is reasonable – although the Tribunal, in considering this, is entitled to look at the overall circumstances. The Second Decision: Application for the Review[20]Mr. Sweeney appeared for the Respondent. The Appellant was, once again, in person. The Tribunal dealt with its jurisdiction to entertain an application for a review in the following terms:- "6 ….. Mr Sweeney submitted that the Tribunal had taken into account in its decision Marley (UK) Ltd v Anderson [1996] IRLR 163, and had clearly been influenced by James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386. He had not had the opportunity to address the Tribunal on these cases, but he would have submitted that they do not differ from the approach in Havering LBC v Turner on which he had relied. He also submitted that the test on the second limb was whether the time after the expiry of the three month period was reasonable. 7 He went on to submit that it had never been the applicant's case that she was unaware that she had a claim. She had merely become aware that it might be possible to present a case out of time. The medical evidence, whilst indicating that the applicant may not have been in a position to conduct a claim, did not show that she was unable to present a claim. She had in fact been able to give instructions with regard to the completion of housing and other benefit forms, which were far more complex than an IT1. 8 He submitted that the Tribunal had also assumed that the respondent would not be facing any particular difficulties in responding to the claim at this time. In fact four senior officers who had been involved, and would be required to give evidence, had since retired, and Mrs Hough, the Administrative Officer, had retired on medical grounds. He submitted that, in the circumstances, the Tribunal should review it decision. 9 Miss Husband said that she had only been able to take limited legal advice. She could not see any reason why the Tribunal should review its decision. Nothing had changed since then. The respondent had not shown that there was any problem about calling the witnesses, even though they had retired. 10 After retiring to consider the matter, the Tribunal indicated that they would accede to the application for review, having accepted that, whilst they had not come to any view at this stage, they should hear further submissions as to the law and the relevant cases to which the parties wished to draw our attention."[21]The Tribunal then conducted its review and came to the conclusion, after a consideration of the authorities, that it should vary its decision by reversing it. The principal elements of the Tribunal's reasoning are contained in paragraphs 13, 14 and 15 of the Reasons which read as follows:- "In considering the question of what is meant by "reasonably practicable", the starting point is Palmer and Saunders v Southend-on-Sea BC [1984] IRLR 119 which we referred to at paragraph 4 of the extended reasons. Mr Sweeney submitted, as we have indicated above, that this is not a case where the applicant was necessarily unaware of her rights. The question was not whether she was fit enough to proceed with the conduct of the case, but whether it was not reasonably practicable (or feasible) for her to have instituted the proceedings. The medical evidence before the Tribunal did not cover this point, nor was it explained how she had been able to complete (or have completed on her behalf) the much more complicated forms necessary to apply for housing and social security benefits. The applicant gave further evidence on this point. 14 Mr Sweeney's principal submission was that we had not correctly applied the two-fold test. It was, he suggested, clear from the cases that, whilst the Tribunal would only to on to consider whether proceedings had been instituted "within such further period as the tribunal considers reasonable" when the applicant has shown that it was not reasonably practicable to the complaint to be presented before the end of the three month period, that further period relates to the initial period of three months. We have already referred to Havering LBC v Turner in our extended reasons. In that case the applicant's employment was terminated in August 1995 on the basis of a medical report recommending that he be retired on the grounds of ill health. The applicant sought to bring a complaint before the Tribunal, the application being presented in August 1997, two years from the date of termination of employment. Whilst the Tribunal had originally extended the time for presenting the application as the applicant appeared to have no concept of time on account of stress, the EAT allowed the appeal as the Tribunal had not considered what further period was reasonable. As we set out in our extended reasons this involves a consideration of the applicant employee and the respondent employer . 15 Harvey (Industrial Relations and Employment Law), which we cited at paragraph 9 of the extended reasons, does go on to say at paragraph T210:
"The first point is that the discretion does not enable the tribunal to entertain an application 'however late it was presented' ( Westward Circuits Ltd v Read [1974] ICR 301). Regard must be paid to the general intention of the legislation that claims are to be presented promptly."
In Wall's Meat Co Ltd v Khan [1978] IRLR 499, the delay between the discovery of the error and the presentation of the claim was four weeks, the applicant being seven weeks out of time. In James Cook & Co (Wivenhoe) Ltd v Tipper (see above) the Court of Appeal held that it had not been reasonably practicable to complain of unfair dismissal until the closure of the business (which occurred after the three-month time limit has passed) but it was reasonable for the claims to have been brought within 2 weeks of the date of closure. In Marley (UK) Ltd v Anderson , which we referred to at paragraph 9 of the extended reasons, the EAT pointed out that the Court of Appeal had not intended to set out any absolute time limits and what is a reasonable period depends on the circumstances of the case."[22]Mr Sweeney informed the Tribunal that he had not been able to find any case where a delay of even two years had been permitted. That, he submitted, was particularly illustrated by the decision of the Court of Appeal in Biggs v Somerset CC [1996] IRLR 203. Mrs. Biggs was employed as a part-time science teacher from 1975. She was dismissed on 31 August 1976. Because she worked only 14 hours per week (rather than the 21 hours then required), she lacked the relevant continuous service to bring an unfair dismissal complaint under the law then in force, the Trade Union and Labour Relations Act 1974, even though only 26 weeks' continuous service was then required to bring a claim. On 3 March 1994, in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 , the House of Lords decided that the hours per week qualifying condition was indirectly discriminatory against women and contrary to European Community law. On 1 June 1994, within three months of that decision, Mrs Biggs made a complaint to the industrial tribunal. The industrial tribunal chairman held that the tribunal did not have jurisdiction to entertain the complaint. The chairman considered that the relevant time limit for presenting the complaint was the unfair dismissal time limit of three months set out in what was then s.67(2) of the Employment Protection (Consolidation) Act, and that time started to run on the date of dismissal. Although he accepted that it was not practicable for Mrs Biggs to have presented her complaint in time, as she was prevented from doing so by the statutory provisions then in force relating to the hours per week qualification, he took the view that there was no further period by which the time limit could be extended which would be "reasonable" within s.67(2). He said that: "It seems to me that it is impossible to suppose that it is now just to permit a claim for unfair dismissal to be presented 18 years after the events took place".[23]The Tribunal relied on the decision in Biggs v Somerset CC , remarking at paragraph 16 of the reasons that the Court of Appeal in that case had held that the words "reasonably practicable" were directed to a temporary impediment or hindrance faced by an individual claimant, such as illness, rather than to a mistake of law. The Tribunal cited the following passage from the judgment:- "Alternatively, the industrial tribunal chairman correctly held that the appellant's complaint was not presented within a reasonable period after the expiry of the time limit. In deciding what is a reasonable further time, the tribunal has to take all circumstances into account in order to achieve a fair balance. It is not concerned only with difficulties faced by the claimant. Therefore, an extended further period may be unreasonable if the employer were to face difficulties of substance in answering the claim".[24]The Tribunal accordingly concluded its reasons with the following paragraph:
"17 In the light of our further consideration of the authorities, particularly Biggs which we have set out above, we have concluded that we should vary our decision by reversing it. We think it would be quite inappropriate simply to revoke it, leaving the matter to be heard on a third occasion. (See Stonehill Furniture Ltd v Phillippo [1983] ICR 556). Both the very considerable lapse of time, and the difficulties that we are satisfied would be faced by the respondent in answering this matter at this stage, are such as to suggest that nothing would be gained by hearing any further evidence) on this particular issue."
[25]The Tribunal accordingly concluded that the complaint was out of time and fell to be dismissed. Was the Tribunal correct in entertaining the application for a review?[26]Mr Falkenstein, for the Appellant, submitted that the power of first instance Tribunals to review their own decisions was contained within limits. He cited the decision of Mummery J (as he when was) in Lindsay v Ironside Ray & Vials [1994] ICR 384: - The power to grant a review on the grounds 'that the interests of justice require such a review' is in very wide terms. It is, however, a power which should be cautiously exercised. As was observed by Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277 at p.281, 28, the interests of justice include not only the interests of the person seeking a review, but also the interest of a person resisting a review on the grounds that 'once a hearing which has been fairly conducted is complete, that should be the end of the matter'. There are also the interests of the general public in finality of proceedings of this kind. Mr Justice Phillips said at p.281, 29 that 'it should only be in unusual cases that the appellant, the applicant before the Tribunal, is able to have a second bite at the cherry.'[27]Mummery J then went on to cite with approval a passage from the judgment of Browne Wilkinson J (as he then was) in Trimble v Supertravel Ltd [1982] ICR 440, which is in the following terms: - We do not think that is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this Appeal Tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by a review under Rule 10 however important the point of law of fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument.[28]Mr. Falkenstein submitted that in this case there was no procedural occurrence which prevented the Respondent from presenting argument on a point of substance. He argued that the Tribunal had failed to recognise that it was not dealing with a legitimate procedural shortcoming, depriving a party of an opportunity to deal with a substantial point. What it was dealing with was a challenge to its reasoning, and the weight it had attached to the various evidential matters in the case. To allow a review in these circumstances, Mr Falkenstein submitted, was an error of law and offended against the principle that there had to be finality in proceedings.[29]Mr. Falkenstein submitted, furthermore, that the decision was unfair to the Appellant, who was entitled to believe that she had obtained a favourable decision after the tribunal had heard the parties put their cases without any material irregularity of misdirection of law.[30]Mr Falkenstein also criticised the paucity of the Tribunal's reasoning when explaining the basis upon which it had reached the opposite result on the review. He submitted that the Tribunal in the first decision had in fact properly applied the principles it cited in the second. He pointed out, furthermore, that the Tribunal had reversed its finding on the difficulty (or lack of it) which the Respondent would have in meeting the claim. This, he submitted, was undertaken without the Tribunal hearing any evidence on the point either at the initial or at the subsequent review hearing.[31]For the Respondent, Mr Sweeney repeated the submission which we have already summarised. He maintained his submission that a failure to allow a party an opportunity to address it on a point of substance (in this case authorities which the Tribunal considered to be important) was a sufficient procedural error to justify a party in seeking a review under the rubric "in the interests of justice". For this proposition, Mr Sweeney relied on Albion Hotel (Freshwater) Ltd v Maia E Silva [2002] IRLR 200 , in which the EAT, in a constitution presided over by HH Judge Serota QC, held that, on the facts of that case, the failure of the Tribunal to invite submissions from the parties on authorities which it considered relevant, but which had not been cited in the hearing itself had resulted in a significant procedural unfairness, even though no complaint was made as the principle to be deduced from the authorities. Such an unfairness would have entitled the appellant in that case to seek a review, although its failure to do so did not preclude its right to appeal.[32]Mr. Sweeney submitted that the Tribunal was, accordingly, entitled to review its decision: see Trimble v Silvertravel Ltd [1998] IRLR 451. Once the Tribunal had heard further argument, it was for the Tribunal to decide, on the application for the review, whether its earlier decision should indeed be reviewed. Accordingly, the Tribunal had not erred in failing to distinguish between a challenge to its findings and legal reasoning on the one hand and the legitimate procedural shortcomings on the other. The Tribunal acceded properly to the request for a review based on the failure to invite the Respondent to address it on certain authorities, which had constituted in a legitimate procedural shortcoming. Paragraph 13(1)(e) of the Regulations was apt to cover such circumstances.[33]Mr Sweeney also submitted that there was no indication that the Tribunal had failed to recognise the interests of both parties in the varied decision. There was no indication, he submitted, that the Tribunal failed to have regard to the issue of finality of proceedings. Furthermore, the Tribunal gave adequate reasons for reaching the opposite conclusion as a consequence of the review, and was entitled to do so. Conclusion[34]We have come to the conclusion that Mr Sweeney's submissions on this appeal are to be preferred, and that accordingly the appeal should be dismissed. In our judgment, the facts of this case come within the ambit of the meaning of the Regulations as interpreted by Browne- Wilkinson J in Trimble v Supertravel Ltd . In that case, an Industrial Tribunal had found that the Applicant's dismissal was unfair, but went on to hold that by refusing to accept an alternative employment offered by the Respondent, the Applicant failed to mitigate her loss. Accordingly, it is decided not to make any compensatory award. The Applicant's solicitor subsequently applied for a review of the decision on the ground he had not been offered the opportunity to address the Tribunal on the suggestion that there was a failure to mitigate, and that the decision of the Tribunal was erroneous in law in that this was not a case for mitigation. On the review, the Tribunal had held that if there had been an error, it was a major error of law, and that its jurisdiction was limited to small matters only and did not extend to a substantial or important error of law. It accordingly refused to review its decision, and the Respondent appealed.[35]Allowing the appeal in Trimble v Supertravel Ltd , Browne-Wilkinson J, giving the judgment of EAT said this (the passage immediately follows that which we have already cited in paragraph 27 above) : 8 It is suggested that there are authorities binding us to hold that it is inappropriate for an Industrial Tribunal to deal with anything other than minor slips or small points of detail. The first case relied upon in support of that proposition, which was relied upon in support of that proposition, which was relied upon by the Industrial Tribunal, is Blackpole Furniture Ltd v Sullivan (1978) ICR 559. In that case this Employment Appeal Tribunal was having to consider whether there was any impropriety in an Industrial Tribunal considering an application for a review even though their decision was under appeal to this Tribunal. The Employment Appeal Tribunal decided there was no impropriety in so doing and, in the course of giving their reasons for that, said this:
'One of the reasons why it is not necessarily undesirable to carry on with the application for a review is that experience shows that very often we have appeals perhaps related to compensation or matters of that kind where the real complaint is that some trivial error had been made - perhaps in computation, calculation or something of that sort - and where all we can do, if we are satisfied that it has, is to remit the matter to be reheard on that particular point.'
That passage does not indicate that only trivial matters can properly be the subject of review; the Employment Appeal Tribunal was there giving its reasons for saying that there was no harm in the review continuing as a general rule because, as is indeed the fact, many review applications relate to trial matters. 9 The other case relied on was D G Moncrieff (Farmers) v MacDonald [1978] IRLR 112 where the Employment Appeal Tribunal, referring to an earlier decision, said that, in their view, review procedure was only appropriate in exceptional circumstances. We certainly do not demur from that; it will be only in exceptional cases that a review is appropriate. 10 In British Midland Airways v Lewis (1978) ICR 782 at p.785E the Employment Appeal Tribunal said this: 'It seems to us that in a case like this where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the Industrial Tribunal, if there is an application for a review, to correct the matter even if it involves overturning the original decision of the Industrial Tribunal. From time to time we have appeals sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip or an error of law or some sort or another and the mistakes have come to light quite soon after the hearing of the Industrial Tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal because the appeal takes much longer and is much more expensive.' 11 There is nothing in those words to suggest that only minor errors of law fall to be corrected in the circumstances. As we have indicated, in our view the distinction is not between minor errors and major errors; what is relevant is whether or not a decision, alleged to be erroneous in law, has been reached after there has been a procedural mishap."[36]Applying those principles to the facts of the case, Browne-Wilkinson J stated that it seemed clear that the Tribunal had reached its decision on mitigation without the solicitor for the Applicant having had an opportunity to present his case on the point. This was, accordingly, a case in which the Tribunal could have thought it appropriate to hear argument on the matter and to grant a review if it felt satisfied that it had erred in law.[37]In our judgment, the instant case is within the guidelines laid down by Browne-Wilkinson J in Trimble v Supertravel Ltd , and the Tribunal was within its jurisdiction in conducting a review. We note, that in Lindsay v Ironside Ray & Vials the Employment Appeal Tribunal, in a constitution presided over by Mummery J (as he then was) followed Trimble 's case and cited extensively from the judgment of Browne-Wilkinson J in that case. The actual point decided by Lindsay , however, was that the failings of a representative, professional or otherwise, will not generally constitute a ground for review. To hold otherwise, as Mummery J pointed out, would risk encouraging a disappointed applicant to seek to re-argue his case by blaming his representative for the failure of his claim, and could involve the Tribunal in inappropriate investigations into the competence of a representative who is not present or represented at the review. If there is a justified complaint against a representative, that may be the subject of other proceedings and procedure. These considerations do not, of course, apply in the instant case.[38]It follows, in our judgment, that the Tribunal was acting within its discretion in entertaining the application for a review.[39]We are also of the opinion that, having decided to review its decision, the Tribunal was entitled, on the review, to come to the opposite conclusion. We have set out the reasons it gives for doing so in paragraphs 16 to 18 above. Those reasons are, in our judgment, sufficient.[40]We think it is unfortunate that the Appellant was unrepresented both at the review and on the original hearing. We understand the argument that she may feel aggrieved at having lost the benefit of a jurisdictional decision in her favour, and by the fact that her application cannot now be heard on its merits. On the other hand, we cannot but be conscious that the first decision was, on any view, extraordinarily generous to the Appellant, and was, in any event, as the Review demonstrated, wrong in law. Had the Respondent proceeded by way of appeal rather than by way of review, we think it is virtually certain that the Respondent's appeal against the first decision would have been allowed. On this analysis, there is much to be said for the matter being dealt with at first instance level, both in terms of time and costs. That observation, however, is not meant to encourage reviews where an appeal is appropriate. A review is appropriate where, as Browne-Wilkinson J put it in Lindsay v Ironside Ray and Vials , the decision has been reached after there has been a "procedural mishap" and where one or other party can say with substance that he or she did not have a fair opportunity to present arguments on a point of substance. As we have made clear, we take the view that this case falls within that summary.[41]We note that paragraph 13(7) of the Regulations requires the Tribunal to order a re-hearing where the order being reviewed is revoked. In the instant case, the Tribunal decided to "vary "the decision by reversing it. In taking this course, the Tribunal relied upon the decision of Stonehill Furniture Limited v Phillippo [1983] ICR 556, which, although the language of the current Regulation is not exactly the same, is nonetheless in our judgment clear authority for taking this course. Certainly, Mr. Falkenstein did not suggest that the Tribunal was obliged to order a rehearing.[42]In all these circumstances, we take the view that no error of law has been demonstrated by the Tribunal's decision to review the first decision and then to vary it, and the appeal, will accordingly, be dismissed.